Opinion
13241 Index No. 6803/07 Case No. 2020-03335
03-02-2021
The ESTATE OF Daniel ENCHAUTEGUI, etc., et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, Defendant–Respondent, Steven Armento, et al., Defendants.
Sullivan Papain Block McGrath Coffinas & Cannavo P.C., Garden City ( Christopher J. DelliCarpini of counsel), for appellants. James E. Johnson, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent.
Sullivan Papain Block McGrath Coffinas & Cannavo P.C., Garden City ( Christopher J. DelliCarpini of counsel), for appellants.
James E. Johnson, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent.
Gische, J.P., Mazzarelli, Gonza´lez, Mendez, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about February 27, 2020, which granted defendant City of New York's motion to dismiss the complaint pursuant to CPLR 3211(a)(7) and 3212(a), unanimously affirmed, without costs.
Plaintiffs claim that the City's agent negligently chose a lower priority radio dispatch code in response to the decedent off-duty police officer's 911 call regarding a possible burglary in the house next door and that the use of a lower priority code resulted in police arriving later than they might have if a higher priority code had been used.
The City established that the defense of governmental function immunity applies in this case, as its agent's duties inherently entailed the exercise of discretion and judgment, and that the assignment of an applicable dispatch code based on the limited information provided by the decedent resulted from discretionary decision-making ( see generally Valdez v. City of New York, 18 N.Y.3d 69, 79–80, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; see e.g. Sherpa v. New York City Health & Hosps. Corp., 90 A.D.3d 738, 740, 934 N.Y.S.2d 463 [2d Dept. 2011] ; Allen v. Town of Amherst, 294 A.D.2d 828, 740 N.Y.S.2d 904 [4th Dept. 2002], lv denied 3 N.Y.3d 609, 786 N.Y.S.2d 812, 820 N.E.2d 291 [2004] ).
The court correctly dismissed plaintiffs' General Municipal Law § 205–e claim for failure to identify noncompliance with a requirement found in a well developed body of law or regulation that imposes clear duties ( see generally Galapo v. City of New York, 95 N.Y.2d 568, 574, 721 N.Y.S.2d 857, 744 N.E.2d 685 [2000] ).
We need not reach any other issues.